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HQ 082741


October 17, 1989

CLA-2:CO:R:C:G 082741 SER

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.6099

Mr. Julius Pergolini
6600 Dorel Street
Philadelphia, PA 19142

RE: Peanut Balls

Dear Mr. Pergolini:

This is in reference to your letter of June 3, 1988 requesting a tariff classification for "Peanut Balls" from Brazil, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue is a snack food from Brazil. It consists of a whole peanut which is inserted into a batter composed of corn flour, manic, flour, vegetable oil, salt and cheese. The product is dried and then fried. It is to be eaten as a snack. The thickness of the batter coating in the finished product is at least equal to the diameter of the peanut.

ISSUE:

What is the classification of the peanut snack under the HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

There are several possible headings where the peanut balls may be classified. They are: subheading 2008.11, HTSUSA, which provides for peanuts; subheading 1905.90.10, HTSUSA, which provides for biscuits and similar baked products; subheading 1905.90.9030, HTSUSA, which provides for corn chips and similar crisp savory snack foods; and subheading 2106.90.60, HTSUSA, which provides for food preparations not elsewhere specified or included.

Under the old tariff schedule of the United States (TSUS), there was considerable administrative precedent in which the thickness of the coating was relevant in determining the classification of products similar to the product at issue. Under the HTSUSA, there is no indication either in the Explanatory Notes or in the headings that there is any intention to alter this practice.

The precedents set forth several guidelines. In a situation where the coating was thin and brittle, proper classification was found to be as peanuts, prepared or preserved. Where the coating was thick and substantial, the item was determined to be either a baked article or edible preparation, depending on the method of preparation.

The legal notes to subheading 2008.11, HTSUSA, describe nut products which fall within this subheading as plain or prepared, but limits the preparations to simple roasting procedures. Due to the production of the merchandise at issue, it would not be classifiable in this subheading.

Subheading 1905.90.10, HTSUSA, provides for biscuits and similar baked products. The peanut balls are fried, and not baked. Since the Explanatory Notes and heading require baking if an article is to be classified in this subheading, classification in subheading 1905.90.10, HTSUSA, is precluded.

The Explanatory Notes and the subheading to 1905.90.9030, HTSUSA, which provides for corn chips and similar crisp savory snack foods, describe snack products which are prepared from a dough, batter or paste mixed with additional flavorings such as cheese, MSG and salt, but without a filling or center, and fried. The peanut balls do not appear to be an analogous product and are not classifiable in this subheading.

Since there is not a more specific provision, the merchandise at issue would be classifiable in subheading 2106.90.60, HTSUSA, which provides for food preparation not elsewhere specified or included.

HOLDING:

The merchandise at issue is properly classified in subheading 2106.90.60, HTSUSA, which provides for food preparation not elsewhere specified or included. The goods may be entitled to entry free of duty under the Generalized System of Preferences, if otherwise qualified. Otherwise the rate of duty is 10 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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